Karl Suleman Enterprizes v George [2003] NSWSC 544

New South Wales Supreme Court

CITATION : Karl Suleman Enterprizes v George [2003] NSWSC 544 HEARING DATE(S) : 29 May 2003 JUDGMENT DATE : 20 June 2003 JURISDICTION: Equity Division JUDGMENT OF : Windeyer J at 1 DECISION : As against the fifth defendant, claim by second and third plaintiffs dismissed, claim by first plaintiff struck out.

CATCHWORDS : PRACTICE AND PROCEDURE - application by fifth defendant to strike out or dismiss proceedings against him - statement of claim pleads first plaintiff company conducted fraudulent unregistered managed investment scheme - plaintiff company appointed fifth defendant as agent to promote scheme by soliciting funds from investors - court previously ordered scheme to be wound up pursuant to s601EE of the Corporations Act - second and third plaintiffs appointed receivers to wind up the fund - claim of plaintiffs to recover from agent moneys paid to him as commission or fees for his services under various heads of Barnes v Addy, unjust enrichment and money had and received and fraud - no claim investors' moneys held on trust - no facts pleaded to ground any claim of receiver so dismissed - whether claim of fund controller doomed to fail - whether illegality and lack of clean hands defences when raised must succeed LEGISLATION CITED : Corporations Act 2001 s601EE, s601FC(2) Supreme Court Rules Pt29 r6 Barnes v Addy (1874) 9 ChApp 244 Cauvin v Philip Morris Limited [2002] NSWSC 736 Everet v Williams (1787) European Mag Vol II page 360; 35 LQR 197 CASES CITED : Marshall Futures Limited v Marshall [1992] 1 NZLR 316 Nelson v Nelson (1995) 184 CLR 538 Wilton v Commonwealth Trading Bank [1974] 2 NSWLR 96 Young v Murphy [1996] 1 VR 279 Karl Suleman Enterprizes (First Plaintiff/Respondent) Paul Weston (Second Plaintiff/Respondent) Neil Cussen (Third Plaintiff/Respondent) Jessie George (First Defendant) Sargon Adam Oshana (Second Defendant) David Varda (Third Defendant) Robert Barkho (Fourth Defendant) Sam Babanour (Fifth Defendant/Applicant on notice of motion) PARTIES : Western Network Service Pty Limited (Sixth Defendant) Eman Oshana (Seventh Defendant) Elizabeth George (Eighth Defendant) Romel Khoshaba (Ninth Defendant) Helen Khoshaba (Tenth Defendant) Roger Hyde (Eleventh Defendant) Clarendon Pty Limited (Twelfth Defendant) Graeme Sinden (Thirteenth Defendant) Palm Cove Marketing Pty Ltd (Fourteenth Defendant) Zia George (Fifteenth Defendant) FILE NUMBER(S) : SC 1446 of 2002 COUNSEL : Mr J E Thomson with him Mr C D Wood (Plaintiffs/Respondents) Mr R S Angyal with him Ms N Obrart (Fifth Defendant/Applicant) SOLICITORS : Coudert Brothers (Plaintiffs/Respondents) Keith Hurst & Associates (Fifth Defendant/Applicant)